By Kerry O’Neill

Under the Small Business Administration’s (“SBA”) 8(a) Mentor-Protégé program, large businesses provide various forms of business development assistance to small businesses participants, including, for example, technical and/or management assistance, financial assistance, and assistance in performing prime contracts. The program, whose governing regulations are set out in 13 C.F.R. Part 124, offers substantial opportunities for large businesses to participate in performance of federal government contracts through partnering with 8(a) program participants on a variety of contractual arrangements, including set-aside procurements, subcontracts, and prime contracts.


Continue Reading The 8(a) Mentor Protégé Program: Opportunities for Large and Small Businesses

By John W. Chierichella and Alexander W. Major

Under FAR 42.709-1, penalties for expressly unallowable costs are to be waived when the expressly “unallowable costs under this proposal” are less than $10,000. Although there are other bases for the waiver of the penalties, those other bases are discretionary. The $10,000 exclusion is mandatory.


Continue Reading Penalties for Expressly Unallowable Costs – The ASBCA Reconsiders and Ups the Ante for Contractors

By Alex Major

In March 2010, a federal district court in Texas ruled that the deaths and injuries sustained by a group of civilian convoy drivers in Iraq during insurgent attacks were not “accidents” caused by conditions of their employment and were, therefore, outside the scope of the protections afforded to contractors by the Defense Base Act (“DBA”). 42 U.S.C. § 1651, et seq. Fisher v. Halliburton, 703 F. Supp. 2d. 639 (S.D. Tex. 2010). We previously described and criticized the district court decision in this blog, noting that it was now unclear how, exactly, the DBA would fare in future litigation. But on January 12, 2012, the Fifth Circuit restored clarity— and common sense—to the application of the DBA by recognizing that the facts in Fisher presented “the quintessential case of a compensable injury arising from a third party’s assault”. Holding the DBA to be the exclusive remedy for damages, the Fifth Circuit vacated the district court’s decision and remanded the case for further proceedings. Fisher v. Halliburton, 2012 WL 90136 (5th Cir. 2012).


Continue Reading Fisher v. Halliburton: Fifth Circuit Invokes Common Sense To Defend Defense Base Act

By Mike Emmick

In the fervor of the U.S.’s current anti-foreign-corruption efforts, a particularly misguided proposal has occasionally reared its ugly head: Requiring “mandatory debarment” for any company that violates the Foreign Corrupt Practices Act (“FCPA”).

On the merits, such a proposal is completely wrong-headed. Debarment is a severe, forward-looking administrative remedy – the corporate “death penalty” – not a vehicle to “boost” the penalties for past criminal FCPA violations.


Continue Reading Mandatory Debarment for FCPA Violations? A Bad Idea Whose Time Should Never Come

By David Gallacher and Curt Dombek

Last year in January 2011, the President signed the 2011 National Defense Authorization Act (Pub. L. No. 111-383, Section 846), which included a “Buy American” requirement for photovoltaic devices being purchased by the U.S. Department of Defense (“DoD”). We previously discussed this new requirement in our blog. Twelve months later, the DoD has issued an interim rule to implement this new requirement. See 76 Fed. Reg. 18858 (Dec. 20, 2011). The interim rule appears to be straightforward, implementing exceptions and manufacturing requirements with which most companies are already familiar under the Buy American Act or the Trade Agreements Act, but there is some fine print of which all companies selling photovoltaic devices to the DoD should be aware.


Continue Reading “Buy American” and Photovoltaic Devices – Interim Rule Issued by DoD

By David Gallacher

2012 will see changes regarding U.S. free trade agreements relating to, first, the dollar thresholds at which the various agreements apply to federal purchases and, second, the likely expansion of the scope of the World Trade Organization Government Procurement Agreement ("WTO GPA"). The updated dollar thresholds are important for government contractors because the thresholds determine when a contract is subject to the Buy American Act ("BAA") or the Trade Agreements Act ("TAA"). As to the WTO GPA, its expansion should provide significant increased access to the U.S and many of its trading partners in international procurements, although the hoped for accession of China to the WTO GPA remains stalled


Continue Reading New 2012 Updates to U.S. Free Trade Agreements Expected; No Progress With China

By Marko W. Kipa, Anne B. Perry, and Lucantonio N. Salvi

An acquisition transaction involving a government contractor brings with it a unique set of rules and regulations. There is no shortage of frequently changing and complex requirements regulating a government contractor’s operations, and a firm grasp of these requirements is crucial both to arriving at a proper valuation of a target company and to understanding the risks associated with the transaction.


Continue Reading No Stone Unturned–Mitigating Risk In A Government Contracts Due Diligence

By Thaddeus McBride, Brian Weimer, and Dan Brooks

The Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”) recently submitted its annual report to Congress for calendar year 2010. The report, which provides general information on notices filed, reviews and investigations completed by CFIUS during the year, and the types of security arrangements and conditions that the Committee has employed to mitigate national security concerns, reveals that a larger number of reviews are proceeding to the investigation stage and that the Committee is increasingly conditioning its tacit approval of transactions upon the parties’ adoption and implementation of various mitigation measures.


Continue Reading CFIUS Submits Annual Report to Congress